I had two friends lose their jury cases last week and another one win his. It caused me to think about why that might happen and how we approach our cases is so important to the outcome. Here are some rambling personal views about the subject.
In one of the cases the trial tookfive weeks, but it only took thejurytwohours to bring in a defense verdict. That very likely means they never changed their minds from the start of the trial through the whole five weeks. Before the trial, the lawyer had presented the case to agroup of us. Afterwards,there was no one in the room who wasn’t mystified as to how he could win the case. He is a very good trial lawyer, so why was he convinced he could win a case which everyone else thought was slim at best? I suspect it was because it was a short time before the trial was to start and he was at a point where he had invested thousands of dollars, countless hours and was in a situation he could not extricate himself from. The rest ofus saw his case as dead on arrival, at least on the theory he was advancing, but not the lawyer who was going to try it.
Another friend who lost her case said that she realizedat a point in the trialshe was in real trouble and afterwards saidshe thought her case was not one that could be won on the basic issue involved.
I would suspect that in the first case the lawyer ran focus studies, but I would speculate they weren’tdone correctly. I also am willing to wager he did not try to find with his focus studies different themes or ways to present the same facts that might get him some jury votes. I’ll bet he used the traditional mock trial approach instead. I think he tried his case on a theory that simply went against jurors views and values. II don’t think he triedto reframe the facts in a different way. For example, changingthe theme from a negligence suit to a breach of public trust in the city never needlessly endangering the people using it’s roads.
Ialso think that lawyers who try to apply some of the techniques they have learned from the Spence trial training sometimes believe that if they apply the techniques they can overcome the negative fact pattern involved like some magic elixir. Often these same lawyers will take the information from the Spence training apply it in strict literal manner. However, I think it is a mistake to simply parrot the words Gerry uses or apply the specific teaching in a rigid manner. It is essential we understand the concept behind the approach and be flexible in it’s application. It is also essential to use focus groups in a case like these to explore different frames of the same case to see if you can find one that does resonate with them.
When we approach our cases thinking like lawyers that means we are very likely not thinking like the jurors who decide our cases. We are too proud of our intellectual ability to regard what think are significant legal matters, as irrelevant to the outcome. We cannot abandon our legal elitism to view the case through the eyes of ordinary jurors. Yet, to the extent we are able to ascertain the underlying compelling issue in cases we are successful or unsuccessful. Anyway that’s my view.
In addition, when we suffer a loss, it’s important to remember Nietzsche’s famous statement "what does not kill us makes us stronger" and I don’t mean that in a flippant way. I mean that painful experiences like this, when we have the courage to analyze them, are huge gifts to us in learning and even in growing into better trial lawyers. It’s important that we need to learn new ways of looking at our cases and by abandoning our legal evaluation process to one in common with jurors viewpoint. The big picture always overrides all the details no matter how significant legal scholars think they are. Part of the answer to the question is whether we can re-frame the case into a different issue but with the same facts.
In another’s friends recent case he used a jury questionnaire and complained it resulted in the loss of good plaintiff jurors. I am in the minority, I think, in believing written questionnaires benefit the defendant far more then they do the plaintiff. In our last trial I drafted a two page questionnaire and the defense responded with a sixteen page one. I was successful in arguing none should be given under those circumstances. Comprehensive questionnaires are fraught with danger that most of the people you eliminate are the ones who help the plaintiff. Not everyone agrees but I don’t like them in general.
In the same case the judge made multiple rulings that were against the plaintiff. In spite of that he won. I told him that hiscase is a classic illustration of what I firmly believe, namely that overriding issues determine the outcome and the rest of what we do during trial merely helps or hinders the appreciation of the issue by the jurors. Read a book like Gladwell’s Blink and you will see the research which supports this. Read any research on the reptilian brain and you will see why the outcome is determined not by all the rulings we anguish over, but the overall impression of the issue as viewed by people’s life experiences and reptilian drives.
This same lawyer said that while he won the case, two jurors told him they resented his filling in the answerson the jury form. He said that was a mistakeand didn’t intend to do that again. I told him I thought he should show the jury how to answer the questions on the jury form and that it was probably how he did it they resented.David Ball agrees as do the great majority of consultants and trial lawyers that explaining the jury form and indicating why they should answer the questions as suggested is a good idea. However, it is very important how you go about it. Ibelieve you should emphasize to the jury that they have total power to do what they believe is right. No one can tell them what to do. The filing in of the verdict form should not be done in a way that undermines that fact, but instead is an explanation of the significance of the question, the reason you feel it should be filled out and how, if they agree, it would be filled out.
The same lawyer said that while his case was against an insurance company for bad faith he left on the jury an insurance company a claims person who was on his side. I think that the days of selecting jurors by demographics or stereotyping is long over. Fat people are not always generous and not all insurance people are anti plaintiff in the right kind of case. It is our life experiences that are important and our deeply held value systems. Why else would good, hard working blue collar Democrats vote for an elitist rich millionaire like Bush? Because he promoted values they agreed with and they were willing to vote against their own self interest – to shoot themselves in the foot because the values were more important. That’s why our jury selection process should be less about jury profile information and more about how people feel and what their significant life experiences have been.